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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
ACS Television, L.L.C. ) File Number EB-01-AN-053
)
K25FM, K27FJ, K39EP, K43EY, K44EQ, ) NAL/Acct. No.
20023278001
K46EN, K49EE, K50EP, K52FI, K53FN, )
K63FT, K64FA, K65GM, K67GT, K68FF ) FRN 599308
)
510 L Street, Suite 500 )
Anchorage, Alaska )
FORFEITURE ORDER
Adopted: July 30, 2002 Released: August 1,
2002
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of eleven thousand
dollars ($11,000) to ACS Television, L.L.C. (``ACS''),
licensee of the captioned low power television (``LPTV'')
stations, for willful violation of Sections 74.780,
73.3538(a)(1), and 73.3538(a)(4) of the Commission's
Rules (``Rules'').1 The violations involve ACS's change
in the location of the antenna, the overall height above
ground of the antenna structure, the height of antenna
radiation center above ground, and the height above mean
sea level of the 15 above referenced LPTV stations,
without prior authorization granted by the Commission.
2. On January 22, 2002, the Commission's Anchorage,
Alaska Resident Agent Office (``Anchorage Office'')
issued a Notice of Apparent Liability for Forfeiture
(``NAL''), in the amount of thirteen thousand dollars
($13,000) to ACS for the noted violations.2 On February
21, 2002, ACS filed a response to the NAL.
II. BACKGROUND
3. On March 21, 2001, agents from the Anchorage
Office inspected ACS's antenna structure, Antenna
Structure Registration (``ASR'') Number 1204036, located
near Eagle's Nest Subdivision, Eagle River, Alaska.
Antennas for each of the 15 above referenced LPTV
stations, licensed to ACS, are mounted on the antenna
structure. The ASR lists the geographic coordinates for
this antenna structure as: N61 20 8.8, W149 30 56.2.
The agents calculated the coordinates for the antenna
structure at the time of the inspection as: N61 20 10.6,
W149 30 46.8. According to Commission records, the 15
above referenced stations' antennas are authorized to
operate at: N61 20 10, W149 30 43.
4. During the inspection, the agents determined that
the antennas on the structure are mounted near the top of
the structure, with the antenna panel mountings beginning
at a height of approximately 43 meters (141 ft.) and
continuing to the top of the structure. According to the
ASR, the overall height of the structure above mean sea
level is 577.9 meters (1,896 ft.), the overall height
above ground, including all appurtenances is 61.0 meters
(200 ft.), and the overall height above ground without
appurtenances is 54.8 meters (180 ft.). According to
Commission records, the 15 LPTV stations are authorized
for an antenna height of radiation above ground of 13.95
meters (45 ft.), height of radiation center above mean
sea level of 592 meters (1,945 ft.) on a structure with
overall height above ground of 18.9 meters (62 ft.).
5. On April 11, 2001, agents from the Anchorage
Office verified by direction finding techniques that the
above referenced 15 LPTV stations were transmitting from
ACS's ASR number 1204036. On April 19, 2001, the
Anchorage Office issued a Notice of Violation (``NOV''),
indicating that the 15 LPTV stations were constructed and
operating at variance with the station authorization, in
violation of Sections 74.780, 73.3538(a)(1) and (4), and
73.1690(b)(2) of the Rules. In particular, the NOV
detailed the variances in geographic coordinates, and the
agents' findings that the antennas for the 15 stations
were mounted on the tower at a height of approximately
100 feet higher than authorized. On May 8, 2001, ACS
submitted a response to the NOV in which it indicated
that, ``in or around November 1998,'' the prior owners,
Goldbelt Inc., constructed a new tower at Eagle's Nest
approximately 100 feet from the tower existing at the
time. ACS also indicated that Goldbelt Inc. registered
the new tower and transferred the LPTV antenna system to
the new tower at Eagle's Nest and removed the old tower.
Further, ACS stated that it was not aware of the
``improper or unauthorized movement of the LPTV antenna
system'' until it received the NOV. ACS stated that, as
a result of its discovery, it was ``proceeding as rapidly
as possible'' to amend pending applications and to obtain
Commission authority for the current operation of the
LPTV stations.
6. On July 20, 2001, September 26, 2001, and December
5, 2001, agents from the Anchorage Office reviewed FCC
records. This research indicated that no construction
permit had been granted authorizing a change in the
overall height above ground of the antenna structure,
height of radiation center above ground, or height above
mean sea level for any of the 15 stations. The records
research also revealed that between October 2000 and May
2001, modification applications were tendered for filing,
but not yet accepted for filing for 13 of the stations
requesting authority to operate at coordinates and
antenna heights similar to the stations' current
operations.3 On July 19, 2001, six of the LPTV stations
received Class A licenses.4 The agents also discovered
that the Class A licenses authorized operations
consistent with the authorizations for the LPTV
facilities, but did not reflect authorizations for
construction or operation at the coordinates and antenna
height at which the stations were operating. Moreover,
Commission records did not reflect any application filed,
tendered, or granted to modify the Class A TV
authorizations.
7. On November 9, 2001, agents from the Anchorage
Office performed a follow-up inspection of ACS's LPTV
station licenses at ACS's office in Anchorage, Alaska.
The stations' records did not include any applications or
authorizations for construction or operation of the 15
LPTV stations at the existing antenna height. ACS stated
that copies of all relevant authorizations and
applications would be provided promptly to the Anchorage
Office to confirm the requisite authority for operation
of the stations. As of the date of the NAL, January 22,
2002, ACS had not provided any documentation to the
Anchorage Office establishing that it possessed authority
to construct or operate its stations' antennas at the
existing height on its antenna structure. On January 22,
2002, the Anchorage Office issued the subject NAL to ACS
for violations of Sections 74.780, 73.3538(a)(1), and
73.3538(a)(4) of the Rules,5 for changing the location of
the antenna, the overall height above ground of the
antenna structure, the height of antenna radiation center
above ground, and the height above mean sea level of the
15 LPTV stations, without prior authorization.
8. On February 21, 2002, the Commission received
ACS's response to the NAL, which seeks rescission or
reduction of the proposed forfeiture. In its response,
ACS states that it became aware of ``an improper or
unauthorized movement'' of the antennas when it received
the NOV. As a consequence of the notice, argues ACS, it
investigated and discovered that approximately 15 months
before ACS acquired the stations in February 2000, the
previous owners had constructed a new tower and removed
the antennas for the 15 stations to the new tower,
raising their height above ground in addition to placing
them on the new tower approximately 100 feet away from
the old tower. Further, ACS indicates that the previous
owner registered the new tower ``on or about October 1,
1999,'' under ASR number 1204036. ACS states that it
subsequently modified the registration in August 2000,
assuming that it was correcting a minor discrepancy in
coordinates.
9. ACS argues that as a result of its discovery that
the tower had been replaced in 1998 and the antennas
moved by the previous owners, ACS proceeded to correct
the situation. According to ACS, the prior owners
registered the old tower under erroneous coordinates and
ACS subsequently measured the exact location of the
current tower and the height above ground of the antenna
system. ACS indicates that the antenna structure is now
registered under the correct coordinates. ACS contends
that in January 2002, it completed and submitted to the
Commission the 30 filings necessary to correct the
discrepancy in antenna height and to correct the tower
coordinates. ACS asserts that the proposed forfeiture
should be cancelled or reduced because it ``innocently
inherited the problems'' at the tower site. ACS argues
that it took action to correct the problem caused by the
previous owners with ``reasonable swiftness.'' ACS
acknowledges that several months passed between discovery
of the problem and submission of corrective filings at
the Commission. ACS argues, however, that careful
completion of 30 filings is not a simple task, and that
determining the facts of the matter was not a trivial
exercise. ACS also claims that the actual discrepancy in
location between the old tower and the current tower is
``very small in absolute terms.'' Finally, ACS argues
that the proposed $1,000 forfeiture for failure to
maintain records is ``duplicative'' and unwarranted, and
that it has a history of overall compliance.
III. DISCUSSION
10. The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Act, Section 1.80
of the Rules,6 and The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087
(1997), recon. denied, 15 FCC Rcd 303 (1999). In
examining ACS's response, Section 503(b) of the Act
requires that the Commission take into account the
nature, circumstances, extent and gravity of the
violation and, with respect to the violator, the degree
of culpability, any history of prior offenses, ability to
pay, and other such matters as justice may require.7
11. We disagree that the proposed forfeiture amount
should be cancelled or reduced because ACS took actions
to correct problems caused by others. We find that ACS
as licensee was responsible for ensuring compliance with
our rules.8 In this regard, we note that although ACS
argues that it acted ``with reasonable swiftness'' to
correct the problems, the fact remains that almost nine
months had passed before ACS took any action.
Specifically, the Anchorage Office issued the NOV on
April 19, 2001, and ACS submitted corrective filings to
the Commission on January 8, 2002. Further, ACS's
remedial efforts to correct the violations do not warrant
rescission or reduction of the forfeiture.9
12. We agree with ACS's argument that the proposed
forfeiture should be reduced because the actual
discrepancy in location between the old tower and the
current tower is ``small in absolute terms.''
Accordingly, we reduce the forfeiture for the Section
73.3538(a)(1) violation by $1,000 from the base amount of
$4,000. We are not persuaded, however, that ACS's
overall history of compliance justifies a reduction in
the overall forfeiture. A search of the Commission's
records indicates that the Commission's staff issued
Official Notices of Violation to ACS on December 28, 2001
and April 12, 2001. Therefore, no downward adjustment
for an overall history of compliance is warranted in this
case.10 Finally, ACS argues that the $1,000 proposed
forfeiture for failure to maintain records is unwarranted
and should be cancelled. Based on our review of the
record, we find that the $1,000 forfeiture assessed for
this violation should be cancelled.
IV. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED that, pursuant to
Section 503(b) of the Act, and Sections 0.111, 0.311 and
1.80(f)(4) of the Rules,11 ACS LIABLE FOR A MONETARY
FORFEITURE in the amount of eleven thousand dollars
($11,000) for changing the location of the antenna, the
overall height above ground of the antenna structure, the
height of antenna radiation center above ground, and the
height above mean sea level of the 15 above referenced
stations, without prior authorization granted by the
Commission in willful violation of Sections 74.780,
73.3538(a)(1), and 73.3538(a)(4) of the Rules.
14. Payment of the forfeiture shall be made in the
manner provided for in Section 1.80 of the Rules within
30 days of the release of this Order. If the forfeiture
is not paid within the period specified, the case may be
referred to the Department of Justice for collection
pursuant to Section 504(a) of the Act.12 Payment shall
be made by mailing a check or similar instrument, payable
to the order of the Federal Communications Commission, to
the Federal Communications Commission, P.O. Box 73482,
Chicago, Illinois 60673-7482. The payment should note
NAL/Acct. No. 20023278001 and FRN 599308. Requests for
full payment under an installment plan should be sent to:
Chief, Revenue and Receivables Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.13
15. IT IS FURTHER ORDERED that, a copy of this Order
shall be sent by Certified Mail, Return Receipt
Requested, to ACS Television, L.L.C., 510 L Street, Suite
500, Anchorage, Alaska 99501, and to its counsel, Charles
R. Naftalin, Esq., Holland & Knight, LLP, 2099
Pennsylvania Avenue., N.W. Suite 100, Washington, DC
20006.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. §§ 74.780, 73.3538(a)(1), and 73.3538(a)(4).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct.
No. 20023278001 (Enf. Bur. Anchorage Office, rel. January
22, 2002).
3 Modification applications were filed for LPTV stations
K39EP, K43EY, K44EQ, K46EN, K49EE, K50EP, K52FI, K53FN,
K63FT, K64FA, K65GM, K67GT, and K68FF.
4 Stations K39EP, K43EY, K44EQ, K46EN, K49EE, and K50EP
were issued Class A licenses on July 19, 2001.
5 The NAL also included Section 503(b) of the
Communications Act of 1934, as amended, (``Act''), 47 U.S.C.
§ 503(b), as one of the listed violations. However, the
inclusion of Section 503(b) of the Act as one of the listed
violations was inadvertent. Moreover, no portion of the
forfeiture amount was based on a violation of this section.
Therefore, Section 503(b) of the Act is no longer included
as one of the listed violations in this proceeding.
6 47 C.F.R. § 1.80.
7 47 U.S.C. § 503(b)(2)(D).
8 Sitka Broadcasting Co., Inc., 70 FCC 2d 2375, 2378
(1979).
9 Station KGVL, Inc., 42 FCC 2d 258, 259 (1973).
10 See Arnold Broadcasting Company, 16 FCC Rcd 267, 269
(Enf. Bur. 2001), application for review granted in part
for other reasons and denied in part, 16 FCC Rcd 13600
(2001); and Crown Communication, Inc., 15 FCC Rcd 21937
(Enf. Bur. 2000).
11 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
12 47 U.S.C. § 504(a).
13 See 47 C.F.R. § 1.1914.